During the run-up to the Roberts confirmation hearings, I put up a post concerning the application of the attorney-client privilege to lawyers working in the executive branch of government. The two leading cases both arise out of investigations of the Clinton administration by Independent Counsel Ken Starr — they are In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) and In re Grand Jury Subpoena, 112 F.3d 910 (8th Cir. 1997). In both cases the courts denied the claim of privilege, as against the Independent Counsel investigating allegations of criminal wrongdoing by executive branch officials. It is important for the analysis of these cases to keep in mind that they both involved possibly unlawful conduct. In both cases the courts reasoned that communications between an executive branch official and a government lawyer might be, prima facie, protected by the attorney-client privilege, but that the privacy interests underlying the privilege would be subordinated to other, weightier interests where a federal grand jury is considering allegations of wrongdoing under investigation by an Independent Counsel. For this reason, as I argued earlier, the arguments by Sen. Patrick Leahy, the ranking minority member of the Judiciary Committee, erred when he argued (in this letter to Attorney General Alberto Gonzales) that Lindsey held that communications between government lawyers and executive branch officials are not covered by the attorney-client privilege.
I’ve tended to read the Whitewater cases as involving a balancing of interests analysis, with the public’s interest in ferreting out wrongdoing outweighing the government officials’ privacy interests (which do exist, pace Leahy). However, as Michael Stokes Paulsen has argued, these cases may make more sense on an analogy with the attorney-client privilege in the context of corporate wrongdoing: A successor in control (such as a trustee) is empowered to waive the privilege, possibly upsetting the expectations of the original parties that their communications would be kept confidential. In addition, shareholders in a derivative action may obtain discovery of privileged communications upon a sufficient showing of a breach by management of a fiduciary duty owed to the shareholders. (The two leading cases on these points are CFTC v. Weintraub, 471 U.S. 343 (1985), and Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), respectively.) In the context of an Independent Counsel investigation, the "real" owner of the privilege would be the Independent Counsel, who acts on behalf of citizens who believe their government officials have breached a duty owed to them. Additional support for this conclusion comes from U.S. v. Nixon, 418 U.S. 683 (1974) and Morrison v. Olson, 487 U.S. 654 (1988), which established that the President does not necessarily speak on behalf of the executive branch in all cases. For Paulsen’s analysis, see the excellent article, Michael Stokes Paulsen, Who "Owns" the Government’s Attorney-Client Privilege, 83 Minn. L. Rev. 473 (1998). In any event, whether one prefers the Paulsen corporate analogy or the balancing of interests approach, it is clear that communications from government lawyers to executive branch officials are protected to some extent by the attorney client privilege. The Paulsen approach would seem at first to lend some support to Sen. Leahy’s claim that a government lawyer represents the American people as a whole, but it’s important to notice the situations in which disclosure is permitted in the corporate context – successors in interest and shareholder derivative actions. Both situations involve allegations of wrongdoing, which underscores the importance of the criminal investigations in the Whitewater cases.
An additional complication arises from the source of the attorney-client privilege in the common law of evidence – that is, the law governing the admissibility of evidence in tribunals. If the Senate Judiciary Committee requests memoranda and other documents prepared by Harriet Miers in her capacity as White House Counsel, it is not acting as a tribunal, but pursuant to an implied right to conduct investigations pursuant to its legislative and advice-and-consent powers. (This analysis draws in part from a very helpful student note – see Glenn A. Beard, Congress v. The Attorney-Client Privilege: A "Full and Frank" Discussion, 35 Am. Crim. L. Rev. 119 (1997).) It cannot act in contravention of constitutional protections such as the privilege against self-incrimination, but it is not constrained directly by the rules of evidence. A congressional committee may seek to obtain evidence by subpoena, and to enforce compliance by bringing an action under the federal contempt statute, 2 U.S.C. § 192. The target of the subpoena may then assert the privilege in the contempt action. The federal court would then be required to determine whether the witness violated the contempt statute. (Presumably the argument would be that the witness did not "willfully make[] default, or . . . having appeared, refuse[] to answer any question pertinent to the question under inquiry" by claiming the privilege.)
There is remarkably little law on this question. The legislative history of the contempt statute is not entirely conclusive, but the rejection of a proposed amendment preserving "such privileges as are allowed to witnesses testifying before a judicial tribunal by the common law" suggests strongly that Congress did not intend to recognize the attorney-client privilege as a defense to charges brought under the contempt statute. Arguments can be made either way on the constitutional dimensions of the privilege. Perhaps the privilege has a constitutional dimension, being tantamount to the right of right of effective assistance of counsel or the privilege against self-incrimination. But these rights have been limited to criminal litigation, to the exclusion of even quasi-criminal, but nominally civil proceedings in judicial tribunals. Maybe there’s a due process argument for the constitutional status of the privilege, but other due process arguments for the creation of trial-type rights in congressional proceedings have been rejected by federal courts. Thus, a court would be writing on a fairly blank slate if it considered this issue.
Perhaps wary of creating adverse precedents that would constrain executive power, past administrations have not asserted the privilege and have voluntarily turned over documents prepared by former government lawyers seeking confirmation to the Supreme Court, lower federal courts, or high executive branch positions. During the battle over the Roberts documents, Senator Leahy listed a number of examples, including the confirmation hearings for Robert Bork and William Rehnquist.
President Bush has hinted that any requests for documents will be resisted on the grounds of executive privilege, without mentioning attorney-client privilege. The Clinton administration abandoned its claim of executive privilege in both the D.C. Circuit and 8th Circuit litigation referred to above, so neither of these cases has any relevance to the question of executive privilege. Executive privilege offers virtually the same protection as the government attorney-client privilege, and is well established. See In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
The Bush administration has been characterized by an almost obsessive interest in secrecy and avoiding disclosure of the details of internal deliberative processes (from the Cheney energy task force through the formulation of policy regarding the treatment of detainees in Iraq and Afghanistan to the Robert confirmation). Not surprisingly, Bush has signaled that the administration will continue to resist demands for disclosure of information relating to internal deliberations. "I just can't tell you how important it is for us to guard executive privilege in order for there to be crisp decision-making in the White House," Bush said at today’s press conference. Thus, expect a fight between the administration and Senate Democrats over the disclosure of documents reflecting the role of Harriet Miers in setting administration policy. Unfortunately for Democrats, the law here favors the administration.